Rasmussen v. Com.
| Decision Date | 28 December 1999 |
| Docket Number | Record No. 1239-98-4. |
| Citation | 31 Va. App. 233,522 S.E.2d 401 |
| Parties | David T. RASMUSSEN v. COMMONWEALTH of Virginia. |
| Court | Virginia Court of Appeals |
David A. Oblon, Springfield (Juliet D. Hiznay, Arlington; Albo & Oblon, LLP, on briefs), for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Present: ELDER, ANNUNZIATA and LEMONS, JJ.
David T. Rasmussen appeals his conviction for drunk driving (third offense within ten years), contending that the result of a breathalyzer test administered to him following his arrest was improperly admitted at trial. We find no error and affirm,
Upon review, we view the facts in the light most favorable to the Commonwealth, the party prevailing below. See Clifton v. Commonwealth, 22 Va.App. 178, 180, 468 S.E.2d 155, 156 (1996)
(citing Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)). On August 3, 1997, Rasmussen was driving a motorcycle at 74 miles-perhour on Interstate 95 just north of Route 617 in Fairfax, Virginia, in a zone limited to 55 miles-per-hour. Trooper Josh Collins of the Virginia State Police stopped Rasmussen for speeding and detected the odor of alcohol on his breath. Collins administered a series of field sobriety tests on Rasmussen, most of which he failed. Collins then arrested Rasmussen for drunk driving (third offense within ten years), and advised him of the implied consent law, which states, in pertinent part:
Any person . . . who operates a motor vehicle upon a highway . . . in this Commonwealth shall be deemed thereby, as a condition of such operation, to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol, drug, or both alcohol and drug content of his blood, if he is arrested for violation of § 18.2-266 or § 18.2-266.1. . . . Any person so arrested . . . shall submit to a breath test.
After arresting Rasmussen, Collins took him to the Adult Detention Center, where a breathalyzer test was performed on Rasmussen using an Intoxilyzer 5000 machine ("I-5000"). The machine was operated by Frederick Smith, a certified breath test operator. Smith later testified that the normal operation of the 1-5000 involves having the arrestee breathe twice into the machine, giving two separate breath samples. The machine prints the lower of the blood alcohol levels produced from the two breath samples on a Certificate of Blood Analysis ("Certificate"). It also transmits, via modem the results obtained from both samples to the state Department of Forensic Science in Richmond ("DFS"). The I-5000 determined Rasmussen's blood alcohol level to be .14%. Over Rasmussen's objection, the circuit court admitted into evidence the Certificate from the I-5000's analysis of Rasmussen's breath. His objection was based on Code §§ 18.2-268.2 and 18.2-268.9. By its order of June 11, 1998, the circuit court found Rasmussen guilty and sentenced him to twelve months in jail, with all but thirty days suspended for one year. The court also imposed a $500 fine and indefinitely suspended Rasmussen's driver's license.
Rasmussen relies upon the language of Code §§ 18.2-268.2 and 18.2-268.9 to argue that for each discrete breath sample taken for testing by a breathalyzer, the Commonwealth is required to give the arrestee the opportunity to view the results as they register on the machine. Code § 18.2-268.2(B) states, in pertinent part:
The accused shall, prior to administration of the test, be advised by the person administering the test that he has the right to observe the process of analysis and to see the blood-alcohol reading on the equipment used to perform the breath test. If the equipment automatically produces a written printout of the breath test result, the printout, or a copy, shall be given to the accused.
Code § 18.2-268.9 reads, in pertinent part:
Any individual conducting the breath test. . . shall issue a certificate which will indicate that . . . the accused was advised of his right to observe the process and see the blood alcohol reading on the equipment used to perform the breath test, the date and time the sample was taken from the accused, the sample's alcohol content, and the name of the person who examined the sample. . . .
Rasmussen contends that because the word "sample" is used recurrently in Code § 18.2-268.9, the legislature intended to assure the accused the right to observe the results of the blood-alcohol analysis for each and every breath sample taken. We disagree.
"The province of [statutory] construction lies wholly within the domain of ambiguity, and that which is plain needs no interpretation." Coleman v. Commonwealth, 27 Va.App. 768, 773, 501 S.E.2d 461, 463 (1998). "Words are ambiguous if they admit to being understood in more than one way. . . refer to two or more things simultaneously. . . are difficult to comprehend, of doubtful import, or lack clearness and definiteness." Id. (citations omitted). "The plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow or strained construction.'" Gilliam v. Commonwealth, 21 Va.App. 519, 522-23, 465 S.E.2d 592, 594 (1996) (quoting Branch v. Commonwealth, 14 Va.App. 836, 839, 419 S.E.2d 422, 424 (1992)). Legislative intent may also be gleaned by consulting other statutes "using the same phraseology," id. at 523, 465 S.E.2d at 594, and "statutes which relate to the same subject matter should be read, construed and applied together.. . ." Alger v. Commonwealth, 19 Va. App. 252, 256, 450 S.E.2d 765, 767 (1994).
"`Where a statute is unambiguous, the plain meaning is to be accepted without resort to the rules of statutory interpretation.'" Frazier v. Commonwealth, Dept. of Social Servs., Division of Child Support Enfment, ex rel. Susan M. Sandridge, 27 Va.App. 131, 134, 497 S.E.2d 879, 880 (1998) (quoting Last v. Virginia State Bd. of Med., 14 Va.App. 906, 910, 421 S.E.2d 201, 205 (1992)). "When analyzing a statute, we must assume that the legislature chose, with care, the words it used when it enacted the relevant statute, and we are bound by those words as we interpret the statute.'" Frazier, 27 Va.App. at 135, 497 S.E.2d at...
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